December 28, 2007

Tradition as Rational Basis

The maxim Lee Harris advocates, "Never let a good argument get the better of your common sense," appears to have been freshly minted for his TCS column on why conservatives should not succumb to the siren song of reason, evidence and good arguments, and should be proud to be as stupid as a Tory aristocrat. Harris's catchphrase reminded me of my concern about Judge Smith's use of "common sense" as a rational basis for denying same-sex marriage in Hernandez v. Robles, and a lengthy discussion over that phrase. It only now occurs to me that for conservatives, "common sense" is a genuinely legitimate defense against rational argument. As Einstein said, common sense is "the collection of prejudices acquired by age 18," and prejudice against homosexuals easily can be cloaked in it. A legislative assumption that same-sex couples are worse parents than opposite-sex couples thus avoids the Romer problem of appearing to be animus. This isn't bias, it's common sense!

Harris's explication of the Jewish prohibition on eating pork is fine until he concludes, 'So why not amend the prohibition on the eating on pork to read: "Thou shalt not eat pork unless it has been prepared according to the modern hygienic standards?"' From what I understand, modern Jews are well aware that one can eat pork without illness now; Yahweh's prohibition may have originated as a way to avoid trichinosis, but it is now part of Jewish identity. Harris doesn't seem to grasp that one can adhere to a tradition simply because it is meaningful to the individual. Thus the difference between the pork prohibition and the same-sex marriage prohibition: Jews do not try to ban others from eating pork, because they recognize pork avoidance is something peculiar to their (and Muslims') religious tradition. It is not something that belongs in secular law. In contrast, Harris and other opponents of same-sex marriage are not content to avoid it for themselves. They must put the prohibition into law and enforce it on others who do not adhere to their tradition.

This is the problem with using tradition as a rational basis for law. Traditions have their meaning through particularity: the Greek Orthodox's midnight Easter service, the Englishman's boiled pudding at Christmas, the African American's wedding jump over the broom. When tradition is given the force of law, particularly in a heterogeneous society, it must be justified with reason if it raises protests from some of those on whom it is enforced. And if those who uphold tradition say that they do not find the other side's arguments to be good -- for example, if Harris thinks that the law must make distinctions between the sexes, and therefore same-sex marriage prohibitions are legitimate -- then they should openly state that they disagree with the premises of those arguments. Hiding behind unreason, whether it is called tradition, common sense or "redneck wisdom," merely embitters one's opponents, who under Harris's prescription would literally go unheard. Stuffing one's ears with cotton is a good way to avoid sirens, but it is a very poor way to behave in a democratic polity.

December 27, 2007

Two Odd Editorial Juxtapositions

Last Friday, the Times editorial board railed against the EPA's decision that California and other states could not set their own standards for "greenhouse gases," those that are thought to contribute to global warming. Though I am sympathetic to California's argument, I found this statement in the editorial odd:

One of [EPA Administrator] Mr. Johnsonís arguments was that a "national solution" to carbon dioxide emissions was preferable to a "confusing patchwork of state rules." A national solution is precisely what the administration has refused to offer. And the California rule -- once in force there and in 17 other states -- would in fact constitute a uniform standard covering nearly half the car market. That is why the automakers lobbied so fiercely against it.

Apparently a patchwork isn't a patchwork if one material makes up almost half the quilt, and Bush's executive order doesn't constitute a national solution. (Admittedly, not a good national solution, but it is something.) It was all the more strange to realize that someone on the editorial board had to have vetted an article that ran the next day, with this statement:

But even though the energy bill has not changed the direction of lighting research, most manufacturers are relieved to have a federal standard in place.
"If each state passed its own rules for light bulb efficiency, we'd have to make 50 different types," Mr. Jerabek said. "Now we can all standardize our production techniques."

Fifty laboratories that may have higher standards than the federal floor are well and good when it comes to state constitutions' protection of nude dancing/ live sex acts, but they are more complicated when it comes to environmental regulations. The higher state standards absolutely should be respected when they existed before there was a federal one, such as California's standards on emissions that were grandfathered after the Clean Air Act. And there are sound arguments to make on the states' behalf in their standoff with the EPA, but an editorial that doesn't address the opposing argument, especially one being raised in an article that probably was being researched while the editorial was written, is a poor one.

Then on Monday, the Times editorial board complained that doctors recognized their high professional standards but refused to abide by them: "A new, worrisome survey raises doubts about physiciansí willingness to meet their medical and societal responsibilities." Toward the end, the editorial acknowledged, "To their credit, fewer than 1 percent of the doctors said they had lied to a patient in the last three years, and three-quarters reported delivering free care to patients who couldn't pay."

Yet in a Monday article about the truly wretched level of dental health in Kentucky, there was no mention of the perhaps relevant fact that the dental profession does not hold itself to any ethical obligation to provide free services to the needy. The article quotes extensively one dental practitioner who does volunteer, but he seems likely to be exceptional not only for having given his own money to outfit a mobile clinic, but for providing free dental services at all. The American Dental Association, unlike the AMA and ABA, has absolutely no suggestion in its code of ethics that dentists have any professional obligation to provide pro bono services to the needy.

I'm not saying that the editorial side should be interfering with the news side. Quite the opposite: I wish the editors gave an appearance of being as educated by their own paper's news as I am. Reading the article gave rise to the following conversation between a law student (me) and a medical student:

AIM Conversation: A Profession Without Pro Bono

PG: Did you know that 1 in 10 people in Kentucky are missing all their teeth? "'Under Medicaid,' Dr. Smith said, 'the only choice a person with a severe infection has is to have the tooth pulled, even if she's 25 years old and the tooth is right in the middle of her face.' He added that the program does not pay for root canals or dentures, though it does help pay for a liquid diet for those without teeth.'

Med: Yeah, that's why dentists are rich, because there's no 'social conscience' to make them see patients who can't afford them. Good luck getting a dentist at Ben Taub. The UT dental students don't rotate at any public hospitals.

PG: Really? That's messed up, considering that they are a profession. They're protected in most states from other people's practice of dentistry. Kentucky doesn't let non-dentists make and fit dentures, for example. I think that if there is a profession, there is a professional obligation to provide free assistance, because by definition there isn't a free market in the service so some people will be priced out. That's why I like the law firms that provide just normal 'storefront' legal advice for their pro bono, and pretty much every fundraiser in law schools and among lawyers is for Legal Aid and other pro bono groups. It's almost socially required among lawyers to feel guilty if you don't either donate to a pro bono organization or engage in pro bono, even if you do other kinds of charity stuff, because you're making your money partly off the fact that it's a profession.

Med: Yeah it's pretty messed up. It's part of the professional culture of dentistry. That's why half the doctors i knew before starting med school told me i should apply to dentistry instead, because there'd be no impetus to take Medicare and such. You don't have to deal with insurance. Most people don't have dental insurance, so you can run a mostly cash business. That's why it's important to have it be part of the profession's code of ethics. Dentistry seems to be more focused on how to make sure you make it in the "real world," probably because most dentists are still in private individual or group practice. They have 4th year seminars where they have to create a business plan and run a fake practice. It's good because they have a lot more business savvy than most med students do. I think most med students just assume the money will come up somewhere. I guess you can blame part of it on a general feeling that "oral health" isn't that important. It's rarely ever "life threatening." That's the people who end up going into dentistry -- a lot of med school rejects and people who wanted to do something health-oriented but didn't want to spend years at the low end of the income totem pole and fighting with insurance companies.

PG: That explains why there isn't health insurance coverage for it, but that doesn't explain the attitude in the profession. It looks like instead of a normal pro bono, the ADA has Give Kids a Smile Day.

A one-day event like Give Kids A Smile isnít a cure-all; itís a wake-up call. People shouldnít have to depend on charity for basic dental care. Itís time for politicians, parents and others who care to work together toward a solution. Give Kids A Smile is meant to accomplish two things, help children get the dental care they so desperately need AND raise awareness that our children deserve a better health care system that addresses their dental health needs.
We need to educate policymakers and parents that good oral health is integral to overall health. We need commonsense, market-based solutions and other reforms that will encourage more dentists to participate in public health insurance programs.
Please update your program's statistics. We will share our national grand total with legislators and other policymakers.

Lawyers aren't militating for the government to be required to provide everyone with an attorney for non-criminal matters (well, very few lawyers are; the ABA isn't pushing that). But there's still at least a hypocrisy in the profession. We at least mouth the words that everyone should have access to legal services. Maybe dentists are just less hypocritical than lawyers.

Med: Perhaps. That's sad to hear about the dental health in Kentucky. I have heard numerous stories from all over about people just having teeth pulled out whenever they have dental issues.

PG: There definitely is a problem in how Medicaid is set up if it will pay for a liquid diet but not a root canal. That's moronic. Talk about penny wise and pound foolish.

Anyone? Anyone? Goldman?

Ben Stein seems to be on a campaign against Goldman Sachs for having shorted some of the products they were underwriting -- a maneuver that allowed Goldman to be one of the few major investment banks to avoid the damage caused by the collapse in the collateralized debt market. Merrill Lynch and Bear Stearns have required massive injections of cash from Singapore and China, respectively; Citibank's and Merrill's CEOs had to step down; Lehman Brothers took a huge loss.

Stein's complaint appears to be that in shorting CDOs while selling them to clients, Goldman failed in its fiduciary duty to avoid conflict of interest and -- not quite the same thing, though Stein glosses over the difference -- its obligation under securities law to disclose every fact or belief that might influence an intelligent, reasonable investor. It's a distinction that matters, given that the conclusion of his latest piece is,

The point is this: Donít expect the securities firms, or the securities laws, to help clients who suffered huge losses.
Basically, a crossroads was passed in the Drexel/Milken scandals. Although hundreds and perhaps thousands of men and women were profiting from misconduct, only a few people, including Mr. Milken himself, went to prison. And even he emerged from prison a very rich man (and by what I see here in Los Angeles, a model citizen).
Today, in the midst of the mortgage mess, we see people breaching their fiduciary duty and getting away with it. A few may lose their jobs and wander off to a wealthy retirement. But the ordinary stockholders of the banks and mortgage companies are staggered. Entities that sought a marginally better return on their money and were sold exposure to the C.M.O.s are pauperized because of the losses. And there are reports that Wall Street is expecting $38 billion in bonuses this year.
I keep hearing well-meaning people say that America is not a nation if it doesn't have control over its borders. But are we a nation if there is no meaningful restraint on what people can do with an offering statement and a computer screen inside our borders? We surely cannot remain a republic under law if there is no law except the axiom from "Richard II" that "they well deserve to have, that know the strong'st and surest way to get."

That last paragraph is slightly absurd. A nation without a meaningful border has lost some aspect of what it means to be a state rather than merely a community; a nation without a meaningful securities law is, well, the U.S. before 1933. Perhaps what Stein is trying to say is that the enforced rule of law is not only for immigration, where it is primarily to the detriment of poor people of color, but also for securities, where it would be primarily to the detriment of wealthy white men.

However, Stein's harping on fiduciary duty problematizes this comparison, because the federal government is the only body that can enforce immigration law, whereas those to whom Goldman Sachs owed a fiduciary duty, and who feel that the duty was breached by Goldman's conflict of interest in selling securities that it was shorting, can sue on their own behalf. Enforcement is not just for the SEC. Admittedly, such civil litigation won't fulfill Stein's fantasy of seeing people in prison, but the securities laws are mostly about disclosure, not about blocking transactions entirely. Certain kinds of conflicts of interest, such as having Goldman's i-bankers influence the research analysts, will be pursued by the SEC, but others won't. If Stein's biggest problem with Goldman is that they were shorting and selling the same securities, he's right -- securities law won't help as long as Goldman did not violate the law through a failure of disclosure.

Modi: More than Hindu Supremacy

I agree with the general reaction among India's political scientists and the rest of the world that Narendra Modi's overwhelming victory in Gujarat -- five years after his government stood by and in some cases actively participated in a massacre of over 1000 Muslims -- is disturbing. But the BJP is likely to continue having success so long as it is perceived as the pragmatic party: the one that reduces crime (the regular sort, not the mini-genocide type) and bureaucracy. Modi has the reputation of being uncorrupted because after a lifetime in politics, he is not wealthy. He does not believe in the rule of law as it is conceived by elites, i.e. that everyone must have a fair trial. He advocates a more brutal form, in which those who are believed to have broken the law will be punished, even if requires a police shootout that takes out their wives as well.

The only reason that the Congress Party leads the national government's coalition is that the BJP overstepped its program of economic liberalization. Instead of just improving infrastructure and making it easier to run a business, they began to destroy tenements without offering the residents another place to live. It was this attitude of apparent malice toward the poor, coupled with the resentment among non-Hindus that an overtly Hindu supremacist party incurs, that led to the BJP's downfall nationally.

Within Gujarat, however, Modi's genuine success in improving business conditions overrode concerns about his being a rightwing nutjob. This is the problem of Indian politics: the choice seems to be between the Congress Party's economic stultification and the BJP's religious bigotry. (Because of the difficulty of finding a "fundamental" in Hinduism, a religion with almost as many major texts as gods, this bigotry sometimes takes weird turns that look like the sort of thing one would see in Saudi Arabia, such as police beating couples found cuddling in public and militants rioting against Valentine's Day as a wicked Western intrusion.) I don't think that Gujaratis who voted for Modi must all be Hindu supremacists as well; it's just that the benefits to them of having a well-paying private sector job outweigh the costs to their non-Hindu neighbors.

December 22, 2007

Another Reason Not to Sell Kidneys

If it were legal to give "valuable consideration" for human organs in transplantation, I think Prof. Maule would be the undisputed rather than just probable winner of the debate as to whether kidney swaps create gross income that should be taxed. As it is, the fact that there is a black market value for an item doesn't mean that it is the value that the government will recognize. After all, didn't Virginia Postrel give Sally Satel a gift that Postrel has said could be valued at $13,000? Even under the 2006 exclusion of $12,000, that's over the limit and either Postrel (typically the donor pays the tax) or Satel should have reported and paid tax for the gift. I assume that neither did because despite their advocacy for a market in organs, neither thought of Postrel as making a taxable transfer of wealth.

On the upside of legalized organ-selling, a cadaveric organ donor like myself -- i.e. someone whose organs will be extracted at death and distributed to strangers -- presumably ought to get a tax deduction for donating valuable property instead of selling it. That ought to be a consolation to my Republican, tax-minded family despite what probably would be a rather sudden death. (For the best organs, it's optimal to die young and healthy with such a massive brain injury that no one is tempted to keep you in a coma while your organs waste away. I've expressed my desire not to be kept alive after higher brain death, but not made a proper living will nor discussed much with family because my mother gets very upset by any reference to death. So if you hear that I'm being kept a vegetable, please bring this post to a court's attention.)

Where PG Finds Herself Saying "Meritocratic" Without Air Quotes

I was nodding along with the first paragraph of this op-ed, which was about the gap of not only wealth but also health and education between rich and poor. But the second para made me wonder if the author had developed a sort of Carnegie guilt about his wealth -- without the self-punishing ethic:

In the realm of education, however, thereís a particularly corrosive shift thatís taking place, one that has tremendous consequences for the development of Americaís best minds: the growing gap between super-wealthy colleges and universities ó and the rest of the academic world. There is a widening division that gives top colleges and universities a huge financial advantage over their poorer counterparts.

Allen goes on to say,

Itís certainly true that these academic institutions have worked hard to be excellent. They deserve to be rich. They should be congratulated.
But should they be allowed to be so protected by the tax code that they can use their disproportionate wealth to raid poorer colleges and scoop up the best teachers by offering better pay, benefits and tenure-track positions? Should they further separate themselves from less fortunate colleges by taking the best high school students and offering them ever richer deals? (This month, for instance, Harvard announced that it would increase the financial aid it offers to middle-class and upper-middle-class students. Other schools are expected to follow suit.)

This argument only makes sense if one assumes either 1) that poor students aren't benefiting from Harvard et al.'s large endowments, or 2) we should want equality of opportunity for institutions, not just individuals. The first is an arguable point; people have pointed out how few low-income students attend the most prestigious and well-funded institutions. But it certainly doesn't seem to be for lack of financial aid. Brown was the last of the Ivy League to adopt need-blind admissions, but now nearly all the top colleges choose applicants without regard to their income, and then promise to give them enough grants, loans and work-study income so they can attend. If we want to get more poor kids into Harvard, the solution is not to make Harvard give its money to community colleges; it's to make Harvard give its money to poor kids as tuition vouchers (if you believe in the private school solution) or to college prep courses in public schools with high concentrations of poor kids.

Unfortunately, Allen doesn't say any of this. He makes what seems to me to be a preposterous argument for greater equality among institutions of higher education. It is sensible only if Allen assumes that the people whose abilities warrant the best teachers and the best classmates are not getting into the super-wealthy colleges, and indeed we fail to develop the talents of poor children who are stuck in bad schools. Having failed to prepare them to get into Harvard, however, I'm confused as to why they would benefit so much from having a Harvard-level professor at a less elite school. Certainly there are excellent community colleges, and good professors at those colleges, but if a professor merits Harvard's attention, why shouldn't he go there? The benefit of joining an elite faculty is not only in the salary; there's also the prestige and the opportunity to work closely with colleagues who are the best in their fields.

I have no problem with ensuring that the billions of tax-free dollars in endowments go to benefit students, but there is no reason why the benefited students should be the ones at institutions other than the endowed one. Good public universities gather their own endowment money from successful alumni and receive the investment of the state's money as well. Endowments are not a zero-sum game. If Allen sees a deserving but poorly-endowed school, he should donate his money there instead of, or in addition to, building a Center for Theatre and Dance at his alma mater.

Bring an Extra $5 to the Strip Club

After years of debating the measure, the Texas Legislature finally passed a $5 surcharge for entry to a strip club, with the proceeds now going to help sexual assault victims rather than to elementary and secondary schools. (I'm really surprised that they didn't make the obvious connection and have the money go toward tuition assistance, considering the cliche that young women strip to pay their way through college.) Because an Austin judge refused to block the law's implementation pending the resolution of a lawsuit against it, it goes into effect on New Year's Day. I'm indifferent to the strip club tax as a matter of policy; I have no moral objection to either taxes or strip clubs, though I do find patrons of the latter a bit pathetic and thus am perhaps less concerned about their welfare than I otherwise would be. I found this statement, however, to be ludicrous:

Jonathan Turley, a constitutional law expert at George Washington University, said the Texas tax goes too far. ''It seems clear legislators are targeting strip clubs because they're unpopular,'' Turley said. ''Laws like this would expose any unpopular industry to punitive taxes. It could be abortion clinics.''

I have several legal objections to Turley's claim.

1) Legislators are taxing strip clubs because they're as unpopular in Texas as beer -- that is, because they're not unpopular at all, and the tax will result in many golden eggs without killing the goose. Despite its conservative reputation, Texas has lots of strip clubs; my hometown of less than 30,000 people, where the AP Biology teacher did not believe in evolution, has one.

2) The Lege is not trying to punish strip clubs, which is what the literal meaning of punitive implies. If the Texas government really wanted to make life difficult for strip clubs, it would be pressuring Houston to impose zoning for adult businesses. At the moment, sex store Zone d'Erotica has an establishment next to the Galleria, and at least one club with male strippers is nearby. Houston women can buy shoes, a vibrator and a lapdance within four blocks. As the original idea to have the money go to school indicates, the Lege is strapped for cash, particularly for education, and is trying to find sources of tax revenue without imposing a state income tax. Like beer, strip clubs are deemed a kind of luxury good, not a necessity, and therefore taxing them is politically acceptable.

3) It's also constitutionally acceptable. While the power to tax is of course the power to destroy, a $5 surcharge is unlikely to destroy the strip club industry in Texas. A beer and a decent indication of appreciation to the floor dancer, never mind a personal lapdance, will total $5. Moreover, there is no constitutional right to be paid for taking one's clothes off, whereas there is a constitutional right not to be unduly burdened in seeking an abortion. The existing jurisprudence on strip clubs focuses on the dancers' expressive claim: that they should be able to dance and to do it naked/ topless. A surcharge on abortions might unconstitutionally burden a woman's right to seek an abortion, particularly in states that have expressed a longstanding hostility and obstructionist policy toward abortion. A surcharge on strip club patrons can hardly burden a stripper's right to express herself; she dances whether there's one guy in the club or twenty. Turley's comparison would work if the tax were on the strippers themselves, e.g. requiring the club to pay the government each time an employee gets on the pole -- thus burdening the strippers' freedom of expression -- but not for a tax on clients.

December 20, 2007

When How Often You Got Laid Decided Whether You Were a Substitute Father

From King v. Smith, 392 U.S. 309, 314 (1968), which challenged the Alabama "substitute father" regulation that disqualified children from welfare benefits if their mother cohabitated with a man, even if he was not obligated to support them:

The testimony below by officials responsible for the administration of Alabama's AFDC program establishes that 'cohabitation,' as used in the regulation, means essentially that the man and woman have 'frequent' or 'continuing' sexual relations. With regard to how frequent or continual these relations must be, the testimony is conflicting. One state official testified that the regulation applied only if the parties had sex at least once a week; another thought once every three months would suffice; and still another believed once every six months sufficient.

That must have been a fun line of questioning.
Attorney: "Sir, what is you concept of 'frequent' or 'continuing' sexual relations?"
State Official: "Uh, once every six months is enough."
Attorney: "Let me pause to express my sympathy."

The Court invalidated the regulation for defining "parent" inconsistently with Social Security Act.

The Oddest Exception Yet

While reading marriage statutes, I noticed that several states make an explicit provision for people of the Quaker and Bahai faiths that ensures marriages performed in their assemblies will still be recognized as marriage ceremonies despite the lack of a traditional officiant (e.g. a minister). This seemed like a reasonable way to accommodate religions that are organized non-hierarchically; there's nothing magical about a minister.

I was startled by this section of Rhode Island law, however: " ß 15-1-4 Marriages of kindred allowed by Jewish religion. Ė The provisions of ßß 15-1-1 Ė 15-1-3 [forbidding incest] shall not extend to, or in any way affect, any marriage which shall be solemnized among the Jewish people, within the degrees of affinity or consanguinity allowed by their religion."

This goes beyond a simple accommodation to prevent people for being punished for having a different organizational structure in their religion than the majority. It gives an actual exception to the otherwise generally-applicable law against incest only to Jews. I'm also puzzled regarding which of the state-forbidden marriages is permited within Judaism; Rhode Island allows first cousin marriage for everyone. Does anyone have a guess as to why this legal exception is given, and given only to Jews?

UPDATE: Trying to find an explanation, I ran across an excellent website that collects U.S. law provisions that relate to Jews. None of the other statutes seemed to be making an exception to generally-applicable law, but this law also seemed a little odd: "Massachusetts: obscene literature control commission: a commission of seven people, appointed by the governor, should contain one representative of the Jewish faith; MASS. GEN. LAWS. ANN. ch. 6, ß 101 (West 1996)." I suppose if there is a critical mass of Jews in Massachusetts, it makes sense to ensure their representation on such a body, but I would have written the law so it wouldn't have to be changed if there's a major population shift. Suppose there's a massive influx of Muslims, or atheists, such that their views also ought to be represented. A more flexible law would be something like, "obscene literature control commission: a commission of seven people, appointed by the governor, should contain one representative of each of the four largest faith groups as determined by the last Census." (Ideally there wouldn't be such a commission in the first place, but apparently they have to uphold ye olde Banned In Boston tradition.)

Some states also adhere strongly to the whole "Judeo-Christian" thing by saying that only "ministers of the Gospel" or Jewish rabbis can administer a marriage ceremony. What do all the Muslims, Hindus et al. in South Carolina do? Get married by a justice of the peace? This seems wretchedly discriminatory.

Penn 2nd to Harvard in Lame Metatagging

Having previously mocked Harvard Law's website for putting a metatag on their website to describe the school as "The world's premier center for legal education and research," I should be fair and spread my contempt to Penn Law, which has an almost-but-not-quite as pathetic tag:

"meta name="Description" content="The University of Pennsylvania Law School, or Penn Law, provides a superior legal education through cross-disciplinary studies and our deserved reputation as a congenial and stimulating environment."

Virginia's also guilty: "Founded by Thomas Jefferson in 1819, the University of Virginia School of Law is a world-renowned training ground for distinguished lawyers and public servants. Currently ranked among the top law schools in the United States, Virginia has educated generations of lawyers, instilling in them a commitment to leadership, integrity, and community service." Yale appears to have hidden their tags a little more cleverly, as they show on Google as "World-renowned school located in New Haven, Connecticut that offers JD, LLM and JSD degree programs as well as many joint degrees, including JD-MBA..." but I can't find the tag immediately in their source HTML. Northwestern favors B-school talk over Harvard/Penn type boasting: "Northwestern Law empowers students to meet the challenges of the complex, competitive, and ever-changing legal and business worlds."

Talk About "The Other"

I'm not sure what amuses me most about this New York law:

NY CLS Dom Rel ß 13-aa (2007). Test to determine the presence of sickle cell anemia
1. On and after the effective date of this act, such test as may be necessary shall be given to each applicant for a marriage license who is not of the Caucasian, Indian or Oriental race for the purposes of discovering the existence of sickle cell anemia and notifying the applicant of the results of such test.
2. No application for a marriage license shall be denied solely on the ground that such test proves positive, nor shall the absence of such test invalidate a marriage.
3. The provisions of this section shall not apply to any person who refuses to take such test because of his religious beliefs.

1. Is it the use of the term "Oriental" in 2007?

2. Is it defining the class of people to be tested not by the ethnic/ genetic group most likely to carry the gene, but by the groups the legislators assumes were unlikely to carry it? On first reading the statute, I assumed "Indian" to mean South Asians, but that would imply that every person carrying predominately Native American genes -- which includes many Latinos -- is getting tested for sickle-cell. So "Indian" probably means Sitting Bull, not Gandhi. Does that mean South Asians have gotten lumped back with Orientals or Caucasians? (South Asians are distinguished from East Asians both historically and genetically.) Or am I going to have to get sickle-cell tested before getting married?

3. Is it requiring African Americans to get tested for sickle-cell anemia before getting married, presumably even if they say they've gotten the tube-tie and the snip-snip, but not requiring tests for anything else?

UPDATE: Puerto Rico beats Nebraska by including "A person suffering from physical impotency for the purpose of generation" among those "incapacitated to contract marriage." (31 L.P.R.A. ß 232) PR must be the one place actually taking seriously the nattering about the necessity of possible procreation for marriage, instead of just using it as a justification for denying same-sex marriage.

December 19, 2007

Bad Move, Sen. Feingold

It's a sad day when I find myself agreeing with John Fund that Sen. Russ Feingold is doing something stupid. Unlike Fund, I commend the good intention behind Feingold's proposed amendment to the pay raise bill (S. 1638), which amendment is part of Feingold's long-running campaign to reduce the influence of money in government. Having restricted the benefits that go toward Congress, he's now trying to extend that to the judiciary. According to Gail Heriot's post, which unlike Fund's article appears to quote the actual amendment*, it "will forbid federal judges and justices from accepting more than $1500 'in connection with a single trip or event, travel, food, lodging, reimbursement, outside earned income, or anything that would be considered a gift' from a source other than a federal, state or local government or a bar or judicial association."

Based on Heriot's version of the amendment, Fund's description seems a little dishonest. He says the amendment "would flatly ban federal judges from attending anything other than a government-sponsored program." Surely forbidding someone to pay a judge's way is rather different from forbidding a judge to attend. Indeed, the amendment Fund claims exists would itself pose a constitutional problem. I find it unlikely that there isn't a First Amendment freedom of association issue, as well as a separation of powers issue, involved when Congress forbids judges from going where they want and listening to whom they want. Nonetheless, the practical effect is as Fund describes:

But such a limit would also discriminate against less well-known but respected judges who are asked most frequently to participate in academic conferences and moot courts at private law schools. Harvard Law will always attract top-flight judges, but Pepperdine or Boston University might have a hard time persuading them to come on their own dime. The overall limit of $5,000 would be quickly reached for the best-regarded judges, who are just the kind that moot court organizers want to attract. The travel limits would also be especially hard on judges who live away from major airline hubs, not to mention those from Alaska and Hawaii.

However, as Josh Wright points out, there probably won't be a significant overall decrease in the amount of judicial education available; public schools will simply take over more from the private programs.

*Caution: Heriot doesn't have a link to the amendment itself, and I couldn't find the language she quoted anywhere on the internet except her own blog, so don't assume that she's got it precisely right. Heriot also injects some irrelevant religion-baiting into her post by titling it, "Where are All the Supreme Court Justices Going? Not to Catholic Schools ...." Amazingly, there are private law schools other than Catholic ones. If we're going to drag religion into the question, I should point out that with Catholics making up a 5-4 majority on the Court, a Catholic law school probably has a fair chance of attracting someone to visit on his own dime. And of course the most well known Catholic law school in the nation is a 20 minute walk from the Supreme Court building.

Shorter Silliness

Thanks to Vista's continued assault on every application I run, a post I'd just finished disappeared. It was too long anyway. The main point was that Tammy Bruce*, Amy Alkon, Anne Applebaum and InstaPundit are all silly for criticizing the National Organization for Women for its focus on what's happening in the U.S., rather than on what's happening in other countries. They are especially silly for ignoring that when what's happening in those countries intersects with the U.S., NOW does issue a statement and push its members to support U.S. government action in favor of women's rights.

Katha Pollitt took this whole absurd argument apart several months ago. It is typical of pro-Iraq war outlets like InstaPundit and Fox News not to grasp that perhaps a group trumpeting its Americanism won't be as effective as an international organization, in changing how women are treated in countries that don't like the U.S. Like someone once said about supporting the war while distrusting Bush, we need to convince these nations that women's rights are a good thing even if the decadent West thinks they are.

* Tammy Bruce wins extra sillypoints for thinking that a law that is equally applied to women as well as men -- such as the Sudan's law against disrespecting Muhammad -- must be a specifically feminist issue, if she doesn't like the law and it's currently being applied to a white British woman. I'm doubtful about criminal penalties for abusing prescription drugs, but I don't assume the law must be a feminist issue because Noelle Bush got arrested under it.

2. I could see the concluding paragraphs of Sally Satel's piece coming as soon as I read this one:

I wanted my donor to be completely anonymous so I could avoid the treacherous intimacy of accepting an organ from someone I knew. I would have gladly paid someone to give me a kidney, but exchanging money for an organ is a felony in this country. Altruistic giving is the metaphorical bedrock of our transplant system. Organ donation, we are told, should be the ultimate gift: the "gift of life," a sublime act of generosity. The giver -- whether living or deceased -- must not expect to be enriched in any way.

Despite the "treacherous intimacy" Satel achieved with Virginia Postrel, rather than "becoming a 'transplant tourist' in Turkey or the Philippines, where [she] could buy a kidney," the takeaway lesson of her piece is not that we should all sign organ donor cards (which Postrel had not, because she "wouldn't have done this for a stranger").

My story, it turns out, is a triumph of altruism. Looking back, I see that my anxiety over my future donor was a neurotic luxury. I worried about finding the ideal donor, but thousands of people have no donor at all -- no relative who will do it out of love or obligation, no friend out of kindness, no stranger out of humane impulse. Alas, I have no kidney to give away. Instead, I am urging wherever I can -- in articles, in lectures, from assorted rooftops -- that society has a moral imperative to expand the idea of "the gift."

Altruism is a beautiful virtue, but it has fallen painfully short of its goal. We must be bold and experiment with offering prospective donors other incentives for giving, not necessarily payment but material reward of some kind -- perhaps something as simple as offering donors lifelong Medicare coverage. Or maybe Congress should grant waivers so that states can implement their own creative ways of giving something to donors: tax credits, tuition vouchers or a contribution to a giverís retirement account.

In short, we should reward individuals who relinquish an organ to save a life because doing so would encourage others to do the same. Yes, splendid people like Virginia will always be moved to rescue in the face of suffering, and I did get my kidney. But unless we stop thinking of transplantable kidneys solely as gifts, we will never have enough of them.

I admit up front that I have a strong opposition to selling organs, particularly from live donors. The area of live organ donation is beset with enough ethical issues (though less so for kidneys than some other organs, particularly because live kidney transplants yield better outcomes) without adding the element of inducing the loss of an organ through payment. It is Satel's framing the issue as one of payment that makes me particularly unhappy.

Lifelong health coverage for organ donors is an excellent idea, but not because people should receive a payment in return for their organs; rather, it is sensible to guarantee that should one's generosity end up negatively impacting health -- even in a very long term and indirect way -- that one won't be burdened by medical bills. Someone who would like to donate, but lacks health insurance and thus must be more fearful of even the low risk of complications, certainly should be able to do so with that fear removed inasmuch as possible. I even would be willing to expand this and have government-guaranteed benefits to someone who is disabled in a way traceable to the donation, or to his survivors if he dies because of it. But none of this has to do with appealing to someone's desire for money; it is about ensuring that his generosity will not be to his own detriment. (In an unfortunate coincidence, Postrel is now in chemotherapy because of breast cancer -- thankfully she reports that her prognosis is good.)

Like Kristof, Satel feels no need to cite any study or even an individual who says that they would give organs in exchange for monetary benefits. I'd be surprised if Postrel would have, inasmuch as her gift seems to have been strongly founded in valuing Satel, the recipient. I doubt that is a regard that money can buy.

First, the cross in the case wasn't "flaming." It was simply an eight-foot tall wooden cross placed in a literal public square in Ohio. It was toppled in protest several times and replaced several times; when the Klan repeated the cross placement at the state capitol, "the Metropolitan Area Church Council, after receiving a permit on Wednesday, placed seven crosses where the wooden Klan cross had stood on the southwest corner of the Statehouse lawn. 'Our secret desire is to make the Klan cross less significant by surrounding it with dozens of identical crosses,' said the council's director, the Rev. Burton Cantrell." In short, nothing visually distinguished the Klan cross from any other cross used as a Christian symbol.

Second, Thomas's analysis of the Klan's intent in putting up the cross is vague. Initially he asserts, "The erection of such a cross is a political act, not a Christian one"; then he concedes, "this message was both political and religious in nature"; and finally concludes, "I think that the Klan had a primarily nonreligious purpose in erecting the cross." Surely a political element to an act cannot render it unprotected by the Establishment Clause, though it may kill the actor's tax exemption. The KKK's cross erected in Ohio, symbolizing their hope for a white, Christian nation, has as much claim to the First Amendment as Antioch Bible Church's cross erected in Redmond, symbolizing their hope for a heterosexual, Christian nation. For each organization, the exclusion of some group of others is fundamental to their conception of Christianity. If we are going to have any religious symbols shoved into taxpayer-owned soil, we cannot restrict them solely to the Happy Ecumenical Loves Lepers church; we have to let the stanky, racist religions have equal rights as the socially acceptable ones. The KKK got its inspiration to put up a cross after a Jewish group put up a menorah in the same square.

Third, Thomas declares that the "Klan simply has appropriated one of the most sacred of religious symbols as a symbol of hate." This goes back to the error identified in the first point: the conflation of the Christian cross -- traditionally wooden, like the cross on which Christ was crucified to redeem us from our sins -- with the Klan cross, which is immediately identifiable as a Klan cross only when it is on fire. By saying that even an unburned cross in the hands of a Klansman cannot be a religious symbol, Thomas effectively strips KKK members of their expressive access to one of the most fundamental symbols of their religion. I agree that a flaming cross is a symbol of hate, though I disagree with Thomas that it can be criminalized under the First Amendment. I also disagree that any cross put up by the Klan is inherently and primarily a symbol of political hate rather than a religious expression. The religious expression itself may be one of hatred; again, we're not only dealing with Sunshine's House of Hugs here. But requiring the government to figure out which are the permissible religious expressions and which are not is precisely the kind of entanglement of state in the affairs of churches that we should avoid.

Pinette makes for an interesting companion with Thomas's concurrence in Virginia v. Black, a case that involved actual cross burning. In Pinette, Thomas says we know that the unburned cross was intended to intimidate because it was put up by the KKK. In Black, he says we know that the cross was intended to intimidate -- without the Commonwealth's having to prove this element of the crime even so far as to giving evidence of the defendants' being white supremacists -- because it was burning.

Thomas's Originalism Is "Unsettling"

A couple weeks ago, D.C. Circuit Chief Judge Douglas Ginsburg visited Columbia at the invitation of the Federalist Society, to speak about Originalism in Constitutional Interpretation. I missed the beginning of his talk, but was in time for the Q&A. One student asked why Judge Ginsburg had signed onto an opinion of a colleague's, with which the student apparently disagreed and found inconsistent with the principles Ginsburg had espoused in his speech. Ginsburg reminded the questioner that the D.C. Circuit is an inferior court bound by the Supreme Court's precedent, such that judges are obligated to apply that precedent as best they can. He added that some of the Supreme Court justices, especially Scalia and Thomas, did try to bring originalism to the Court.

Following up on that question, I essentially asked Judge Ginsburg if he could explain Justice Thomas's "originalist" concurrence in in the Bong Hits 4 Jesus case, given that it drew on 19th century schoolmaster behavior to determine how the free speech aspect of the First Amendment applied to schoolchildren, without contemplating the result of such a standard for how freedom of religion applies to schoolchildren. (Schoolmasters and judges apparently didn't think the mandatory Protestant prayer and Bible reading were violations of schoolchildren's First Amendment rights back then, so if we applied the "what was good for kids in 1837 is good for 'em now" rule, the five Catholic justices' own offspring could be forced into religious observances with which they do not agree. Moreover, Thomas's concurrence in Rosenberger v. UVa makes clear that he does think the First Amendment's religion clauses apply to state institutions.)

Judge Ginsburg said he wouldn't address the specific opinion, but he did say that he found Justice Thomas's writings on the Establishment Clause to be "unsettling." As John C. Eastman has put it, Thomas takes an emperor-has-no-clothes attitude toward Establishment Clause precedent and the other justices' interpretation thereof. This creates instability and uncertainty for lower court judges like Ginsburg, who on the one hand may sympathize with Thomas's originalism, but on the other hand still must apply the precedent.

Problems with the Prospect's "Left Behind?"

I'm really happy to see reports on programs that help African American students succeed; I have been a believer in such programs since I went to the University of Virginia and witnessed how well its tutoring and mentoring efforts worked (86% of black students graduated within 6 years, better than every other public school and most private schools). However, I don't think that Dana Goldstein's article covers everything that it should about the issue of programs that are solely for black males.

First, it doesn't get all of its facts quite right. For example, she claims early in the article, "More young black males are behind bars than in university lecture halls." There are more black men in jails and prisons than in college, but remember that prison sentences often are a lot longer than higher education spans (even if you're Tommy Boy), so the prison population includes many men who no longer can be called "young." More college-age men are in college than in prison.

Second, and more importantly, it doesn't attempt to disaggregate the effects of race from those of class. In the world she describes, white = affluent and minority = poor. While this may be accurate for a majority of the kids in a Westchester town, particularly with a recent influx of low-income immigrants, it nonetheless ignores the crux of the legal problem that she does note: targeting by income is still constitutionally OK, targeting by race is not. Goldstein gives three paragraphs of the article to quotes from people on this point, but she never really discusses it. Why doesn't Ossining allow all poor students -- female as well as male, white and Latino as well as black -- join its best-funded program? If the reason is that the young black men gain some particular benefit from being segregated from women and non-blacks, then part of the Ossining Plan's raison d'etre doesn't seem sound. (To the extent that racial integration from first grade onward has minimized racial tensions, the Plan does work.) Goldstein says,

Research shows that students who attended racially and socioeconomically integrated schools have better life outcomes than their nonintegrated peers of similar socioeconomic status. Integrated kids of all classes and races grow up into more tolerant adults. And although integrated schools don't always do a better job of sending poor, nonwhite kids to college, studies have shown that black students are more likely to be successful in the workforce if they've attended integrated schools.

So maybe a more complex blend of integration and segregation is what we need: classroom hours with a mix of students, but also some in-school time with students of the same race and gender to discuss common concerns that do not pertain to people of other races and genders. Or maybe not, and Ossining's special attention to young black males is as fear-based as some of the comments on the article suggest. Whatever it is, Goldstein failed to explain the reasoning behind the bit of racial segregation in this model of integration, and that makes her article unhelpful in understanding the dynamics of academic success. The overall effect is to bemoan the Supreme Court's failure in Seattle to understand the value of integration -- while quietly dodging what Ossining finds valuable in segregation.

December 13, 2007

Bringing International Law to Bear on Nuclear Efforts

Scheer does not consider nuclear energy to be a viable alternative to fossil fuels or renewable energy. He contends that nuclear energy is too dangerous because peaceful civilian uses are so closely tied to military applications. In addition, nuclear energy production consumes resources such as water, divides global society into the "haves" and the "have-nots," requires a significant amount of backup capacity, and creates waste that is hazardous and difficult to deal with. In the chapter "Sun or Atom," he writes at length about the "nuclear crisis," the high costs of atomic energy, and the less-than-stellar payoff of nuclear energy.

This point about peaceful civilian uses being closely tied to military applications is one highlighted in most of the cautions countering the latest NIE regarding Iran's nuclear development. From what I understand, the big shift between the old intelligence and the new is not exactly what Iran is doing, but why; there seems to be more belief that they really are working on civilian uses. The point to draw from Scheer is that if nuclear power were not seen as a perfectly reasonable way to obtain energy, Iran would have more difficulty claiming it is not looking for a military application. Admittedly, conservative immediately sneer that any country with lots of oil couldn't possibly be looking for an alternative energy source. But I can believe that Iran foresees a future in which it will be making such whopping profits on oil export that domestic use will be priced out, so it had better find something affordable for its own people's use while other nations gobble its oil. That I can believe it, however, doesn't mean I think it's actually true with regard to Iran's current leadership.

But even if the U.S., EU, Russia, China and other major nations came to a consensus that nuclear energy shouldn't be used, I don't know of a way to enforce that on other countries. Nuclear energy has environmental effects, so perhaps there would be a treaty like the Stockholm Convention restricting DDT, except the Convention was signed by only 98 countries. Iran is very unlikely to sign such a document now, and as we have seen in the case of even the U.S. itself, having a government of a nation sign an agreement does not mean that future governments of the same country won't withdraw.

Building A Better Legal Profession (really?)

Of course, we all know that while a good number of the people who are admitted to Stanford Law are really, really smart, some of them are going to end up being fairly useless. For example, take the Stanford students behind Building A Better Legal Profession, a supposedly "national grassroots organization" dedicated to "reforming the legal profession" (which seems to mean not making corporate lawyers work so hard, and increasing diversity among associates and partners at BigLaw firms).

My main critiques:

1) You are not "grassroots." You are enrolled at Stanford Law.

2) BigLaw is not "the legal profession." Less than 10% of lawyers work in the AmLaw 100. Only a Stanford student would think that their rarified air was "the legal profession."

3) Poor, poor corporate lawyers. I am amazed by some law students' passion. Even during their first year, many students are active in organizations that advocate on behalf of the poor, or work for political candidates, or lobby on behalf of equality under the law. That is why I am completely unimpressed by people who are dedicated to making life easier for corporate lawyers from elite schools. You're gonna get paid almost 200K (with bonuses) your first year.... quit yer whining. Nobody cares.

4) Cross-register for a statistics class: The group posts "rankings" of law firms based on their supposed performance on a number of indicators. At the moment, they seem to only focus on diversity rankings, and made a big splash in the media when they released these rankings over the summer. I'll admit, increasing diversity in corporate law firms is somewhat more worthwhile than the general "better legal profession" schtick, but if you are going to rank firms, make sure you know what you are talking about.

For example, one of their main statistical analyses is measuring the "female opportunity gap" between associates and partners. Presumably, this ranking is offered to show how poorly a firm performs at promoting women. But the statistical method is flawed. I doubt the percentage of female partners vs. the percentage of female associates is in any reliable way correlated to a firm's willingness to promote women (there are many other factors intervening, not least of which is what percentage of associates that are promoted to partner regardless of gender). For example, look at Baker and McKenzie in Northern California. They have far and away the highest percentage of female partners (32.7%) and are a close second in highest number of female associates (60.7%, behind Morgan Lewis' 61.6%). But, they rank 6th, right behind Skadden, which has 28.6% female associates and 16.7% female partners!

Since these clowns decided that weighing the amount of female partners against the amount of female associates somehow would serve as a proxy for whether a firm was doing a good job of promoting women, if anyone actually gave a hoot about these rankings, the best way to improve your ranking would be clear: decrease the amount of women you hire as associates!

Of course, not much should be expected when you describe your ranking methodology as cut, paste and rank. But, you guys go to Stanford: even if you are in law school and thus innumerate, you are embarrassing Sergei and Larry. If you spent half the time on your analysis than you apparently did on taking artistic photos of yourselves and making a ruckus in the press (in my opinion, seems more about self-promotion than anything else), maybe your rankings would have some degree of relevancy. If you are going to make a public claim that your rankings should mean anything whatsoever, then you must rank responsibly.

5) Capitalization. You are law students. Learn to use capital letters. Yes, I know you don't have to and law firms will still slobber all over you in hopes that someday one of your classmates will give you work, but try to pretend that you are serious people.

UPDATE: And look at that curve! BABLP ranks firms by quintiles and applies the standard A through F rating, with A's going to the top quintile and F's to the bottom quintile. Coming from students at the law school with perhaps the most grade inflation of them all (a whopping 3.4 median), isn't that a bit harsh?

December 11, 2007

Cruel People at the Securities & Exchange Commission

If I worked at the SEC, I would not release a major revision of a rule immediately before law school final exams. If I felt absolutely compelled to make such a release, perhaps under threat of Jim Cramer's actually losing it because he couldn't sell restricted securities for a year, I would at least post the full text of the new version of the rule prominently on sec.gov. I would not leave people to be guided by some choppy sentences that have to be cut and pasted where appropriate on the previous version of the rule, buried near the end of a 110-page document that actually is requesting comment on Paperwork Reduction Act burden estimates.

I thought about submitting a comment on the SEC's crappy sense of timing and text -- what about my Paperwork Burden in having to print out both versions and then get out the scissors and glue? (Federal regulations are not a good place to be switching between two online copies to try to create a document.) However, a "professional affiliation" of Angry Student in Last Semester of Law School probably doesn't carry much weight at an agency where the examples for that space are "Professor of Economics, University of Providence /or/ Markets Section Chair, Association of Professional Accountants /or/ CEO, Acme Widget Company."

On the other hand, props to the SEC for getting rid of the various requirements for non-affiliates' sales. That's going to make a certain time-pressured exam go by just a little faster tomorrow afternoon.

December 10, 2007

The Effect of a Moderate Majority

In criticizing Ayaan Hirsi Ali's Times op-ed, Jill at Feministe makes the useful points that
1) "Selecting one section from a centuries-old religious text and then drawing the conclusion that most followers of that religion follow that text to the word is ridiculous."
2) "If moderate Muslims were actually silent, we would have never heard about this case [of a Saudi girl who was kidnapped and raped, but is being punished for having been alone with men] to begin with."
3) "And itís really not the responsibility of Muslim people to be on the constant defensive in the first place -- criticize the radicals, but donít pin their actions on the millions of people who are horrified by them. And certainly donít draw hasty conclusions about who is and isnít speaking out when you havenít even bothered to listen."

What Jill doesn't address, however, is the question of how laws and policies come to be in the first place. Ali doesn't say there's no such thing as a moderate Muslim; she says, "The vast majority of Muslims are said to be moderates. ... How many Muslims are willing to stand up and say, in the case of the girl from Qatif, that this manner of justice is appalling, brutal and bigoted -- and that no matter who said it was the right thing to do, and how long ago it was said, this should no longer be done?"

The question of "how many" is a question of who forms the majority -- the moderates or the extremists. If the majority of Saudis think it is wrong to have a woman caned for being the victim of a crime, why is this the result of their laws? Certainly every nation has laws that are outdated (although I suspect there's a correlation between those who say there are no moderate Muslims, and those who think sodomy-as-felony was a perfectly sensible law), and the retention of stupid laws is more excusable in Saudi Arabia, which is not a democracy, than in a country where a majority of people can change the law.

But there are more examples in Ali's article than Jill addresses. What of a 54-year-old woman who could have faced 40 lashes for the crime of not knowing that she shouldn't let Sudanese schoolchildren name a teddy bear after the Prophet? The Sudan at least theoretically has democratic participation in government and thus in legislation. Perhaps the nation's leadership was lying, but they claimed that they were worried that letting the woman off without any punishment would antagonize their own people. There apparently are enough Muslims in Sudan who think blasphemy, even the unintentional sort, should be punished with 40 lashes that this woman's case required a pardon and spiriting her out of the country. There is, in short, a radical majority, or enough radicals that their voice can dominate as long as moderates don't protest. The same apparently is true in the world's largest democracy.

Then thereís Taslima Nasreen, the 45-year-old Bangladeshi writer who bravely defends womenís rights in the Muslim world. Forced to flee Bangladesh, she has been living in India. But Muslim groups there want her expelled, and one has offered 500,000 rupees for her head. In August she was assaulted by Muslim militants in Hyderabad, and in recent weeks she has had to leave Calcutta and then Rajasthan. Taslima Nasreenís visa expires next year, and she fears she will not be allowed to live in India again.

How can Indians -- not just Muslims, but Hindus, Sikhs, Christians -- tolerate this treatment of a human rights refugee? I don't even have NRI status, yet having originated from Andhra Pradesh is enough to embarrass me about the behavior of people in Hyderabad. This is a healthy embarrassment; it encourages me to do what I can for Ms. Nasreen's ability to stay in India free from harassment. How many Indians are willing to stand up and say Ms. Nasreen's harassers will be prosecuted by law and shunned by the majority moderate society, and that cowardly politicians who refuse to renew her visa will lose their seats? This is what a moderate majority must do. It is not enough for a few moderates to speak up on behalf of the oppressed. A majority must do so.

I have no problem with people abroad asking me how Americans could have let the Bush Administration invade Iraq. I do not try to claim that this was the action of a few "radicals" and that the majority of moderate Americans were horrified by this action. I have to admit that a large majority of Americans in March 2003 thought the Bush Administration was doing the right thing (and apparently still believed so in November 2004). Evidently those of us who disagreed didn't do enough to change the majority's mind. For those of us who tried, no blame should attach. But what would you be if you didn't even try?

Blawg Review #138

Writes about Human Rights and Law Student Rites

Happy World Human Rights Day! In commemoration of this day, which has taken on a deeper significance in 2007 in countries like Pakistan and Malaysia, part of this Blawg Review focuses on issues of human rights. The other half of this week's review is about another part of being human: the ceremonies, traditions and habits that particularly come to the fore at the end of the year, whether you're celebrating your religious faith or cursing your Constitutional Law professor.

The two biggest American law stories this week have been the oral arguments in the Boumediene case, in which a Guantanamo inmate picked up in Bosnia is challenging his detention; and the revelation of the CIA's destruction of a tape depicting agents engaged in water-boarding an Al Qaeda operative.

Both received thorough coverage at Balkinization: Guest Jonathan Hafetz from the Brennan Center for Justice discussed "Easily Administrable" Human Rights Violations and declared the D.C. Circuit's review of Combatant Status Review Tribunal (CSRT) findings to be an inadequate substitute for the ancient Anglo-American right of habeas.

CIA agents, like the NYPD (as Scott H. Greenfield points out), are learning that they should get the recording devices out of the room before committing a potential violation of someone's rights.

Both stories also raise concerns about America's respect for human rights and due process during the war on terror, and should not be brushed aside as partisan bickering. As TalkLeft's Jeralyn Merritt notes, a bipartisan group from the House of Representatives -- including now-Speaker Nancy Pelosi -- was briefed on the CIA's detention methods in 2002, and raised no protest at that time.

(Perhaps an indifference to torture is what we should be scanning our politicians for?)

KipEsquire has several items about violations of the right of free speech, especially the 5th Circuit's inept application of the Bong Hits 4 Jesus precedent.

In the midst of those universal law school stressors, exams and job hunting, Jeanne at the University of Nebraska at Omaha lets us know that she's OK. Benjamin Duranske offers a virtual escape into Second Life Law School.

Divine Angst's roundup gathers perspectives from students encountering their first law school finals and 3Ls at their last (like me!), and the Legal Underground has more on the same theme.

I'm currently sweating exams in securities and international antitrust, as well as a paper for my corporate governance seminar, but fortunately Concurring Opinions offers useful posts on two of the three:
Devan Desai on India's new merger regulations (surprise, they're excessively cumbersome!)
and Jeffrey Lipshaw on the 2007 Spencer Stuart Board Index, a database documenting the governance practice of the S&P 500.

The Innocence Project, which helped to secure Jeff Deskovic's release, is supporting efforts to compensate the innocent and a federal bill that would exempt that compensation from the federal income tax.

Many law students breathed a sigh of relief this week on receiving the news that they had passed the Multistate Professional Responsibility Exam. Despite the ease with which we may get through the technical requirements of ethics study, there are constant reminders of how important they are in our lives, such as John Steele's annual top ten legal ethics stories at Legal Ethics Forum. Number 7 on the list: "New rules. New York took a huge step towards adopting the Model Rules and saw some of its new advertising rules enjoined on constitutional grounds. Californiaís Rules Revision Commission (very slowly) headed in the same direction."

As if there weren't enough meaningful, important rules to learn about how to practice, Steve Minor informs us that the Supreme Court of Virginia uses only Courier in its own documents, and plans to require that all filings be made in that font or Arial or Verdana, while other courts forbid using such sans-serif fonts.

I am just going to hope that's not on the bar exam, nor any new rules that would govern "ethical law blogging." Kevin O'Keefe swears that such proposals have been made.

And for a final human rite, there's the need to have something inspirational, particularly around the holiday season. So here it is, courtesy of Kenshusei. Go forth, and be cynical no more.

December 05, 2007

Submit for Blawg Review #138

De Novo is hosting Blawg Review #138 next Monday, which is International Human Rights Day. Although I'll probably post some links relating to that topic, I'm also interested in anything else you've posted or read that you think more people should see. See the Submission Guidelines and blogcarnival.com for the submission form.

December 02, 2007

It's All About the Humans

Today's New York Times magazine takes a more extensive look at the animal cruelty prosecution of ornithologist Jim Stevenson and the reason why he shot a feral cat: because cats brought by humans are a menace to native birds. The cries from cat lovers that cats are only doing what's natural are nonsensical, given how unnatural cats are in the first place. Even feral cats are domesticated kitties left to fend for themselves, though their very existence is a shame against our own species for having abandoned them to die of starvation and exposure. This quote from the article infuriated me: "People who own cats are very emotionally attached to them -- even feral cats that arenít their own -- and they're extremely vocal." If those people are so emotionally attached, they should have the decency to take the cats home with them, instead of forcing the birds and the people who like them to bear the burden of cats' feeding on whatever they can find when a human hasn't been charitable that day. The legal claim that Stevenson was shooting someone's pet is ludicrous. A pet cat isn't left outside 24-7-365, with "gnarly" fur and its kittens mostly killed by predators.

The article's focus on animal rights versus environmental ethics struck me as odd, because in reality the question is simply what humans most value. People who value wild birds in their habitats will shoot the feral cats that predate on them; people who value cats -- domestic creatures that belong in homes, not under highways -- ought to take responsibility for them. Moreover, how can a cat be said to have a "right" to kill birds, particularly if it is actually a domestic cat that does so for sport rather than survival? Surely the bird has a right to life that trumps the cat's right to sport, which means that a human that defends the birds has acted rightly, at least under our normal concepts of permissible killing.

I've never been fond of birds, and in New York, I fear their aerial excretions. But I do want to minimize efficiently the effect of humans on the environment. Inasmuch as people care whether there are birds, simply keeping cats under control, whether by upholding our responsibility to keep them indoors, or killing the feral predators, is a much lower cost way to delay birds' extinction than is reducing humans' incursions into their habitat in the first place. Though the article warns against coming "at the feral-cat advocates with blunt force," that would be my blunt force: feral cats' advocates can house them, and if they run out of homes, the remaining cats should be killed if they pose a threat. The potential threat isn't just to birds; a cat that bites or scratches a human can cause a serious infection from its bacteria.